(a) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S. 138‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dismissal of revision petition being barred .by 16 days‑‑ Validity‑‑‑Such delay was negligible‑‑‑Commissioner instead of knocking out the petitioner on technicalities, ought to have considered his prayer on merits‑‑‑Order of Commissioner refusing to hear the lis on merits and disposing of the petition on account of limitation could not be approved‑ High Court accepted Constitutional petition and declared impugned order as illegal with observation that revision petition filed by petitioner would be deemed to be pending before Commissioner for disposal in accordance with law.

(b) Taxation‑‑‑

‑‑‑‑ Condonation of delay in filing appeals in revenue matters‑‑‑Such prayer would all the more be considered objectively and sympathetically unless the assessee was contumacious ‑‑‑Assessee by delaying an appeal did not stand to gain anything nor a delay on his part would give rise to or create a valuable right in favour of the Revenue.

C. A. No.323 of 2001 and Controller, Land Acquisition v.. Mst. Katiji and others (1987) 56 Tax 130 rel.

(c) Duty of Court‑‑‑

‑‑‑‑Judiciary is respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice and is expected to do so.

Controller Land Acquisition v. Mst. Katiji and others (1987) 56 Tax 130 rel.

Syed Zia Haider Rizvi for Petitioner.

Muhammad Ilyas Khan for the Revenue.

ORDER

Through this order I will dispose of Writ Petitions Nos.21537, 21538 and 21539, of 2001.

2. Through these Constitutional petitions an order of Commissioner of Income Tax Wealth Tax Sargodha Division . Sargodha, dated 8‑11‑2001 is assailed. Through that order the learned Commissioner rejected the revision petitions filed under section 138 of the Income Tax Ordinance, .1979 on account of their being barred by limitation. Earlier, it was noted that under the aforesaid provisions a revision was to be filed within 90 days of the date on which the impugned order was communicated to the petitioner. According to the learned Commissioner, the assessee was required to file the revision by 3‑7‑1999 which was actually filed on 19‑7‑2000. Also that the petitioner failed to give any evidence to explain the delay.

3A. After hearing the learned counsel for the parties. We are of the l view that the delay of 16 days was negligible and the learned Commissioner instead of knocking out the petitioner on technicalities ought to have considered his prayer on merits.

3. In a recent judgment in C.A. No.323 of 2001 we have examined the issue of limitation in revenue matters. For various reasons stated in that order, this Court expressed the view that unless an assessee was contumacious a prayer for condonation of delay in filing appeals should be considered objectively. Particularly for the reason that by delaying an appeal an assessee does not stand to gain anything nor a delay on his part gives rise to or creates a valuable right in favour of the Revenues, Therefore, we directed that the delay of 43 days in filing of the appeal before the Customs, Excise and Sales Appellate Tribunal under section 46 of the Sales Tax Act, 1990 ought to have been condoned. In the course of that order we referred to the observations of M.P. Thakkar, J. in re,. Controller Land Acquisition v. Mst. Katiji and others (1987) 56 Tax 130 (SC India), Speaking for the Court the Hon'ble Judge observed that:‑‑

(i)Ordinarily, a litigant does not stand to benefit by lodging an appeal late.

(ii)Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties.

(iii) "Every day's delay must be explained" does not mean that pedantic?? approach should be made. Why not every hour' delay, every second's delay? The doctrine must be applied in rational, common sense and pragmatic manner.

(iv)When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in justice being done because of a non‑deliberate delay:

(v)There is no presumption that delay is occasioned deliberately, pr on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

(vi)It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds bit because it is capable of removing injustice and is expected to do so.

5. To the above list, we added our own views expressed earlier the, in revenue matters prayer for condonation by an assessee/citizen should all the more be considered sympathetically.

6. Therefore, I will allow these petitions and hold that the impugned order of the Commissioner refusing to hear the lis on mere and disposing of the petitions on account of limitation cannot be approved. It is accordingly declared to be illegal. The revision petition filed by the petitioner shall be deemed pending before him for their disposal in accordance with law on merits.

S.A.K./5‑356/LPetition allowed.